GILMORE v. AMITYVILLE UNION FREE SCHOOL DISTRICT

ALEXANDRA GILMORE and JULIET JORDAN-THOMPSON, on behalf of themselves and the Voters of the Amityville Union Free School District, Plaintiff(s), -against-, THE AMITYVILLE UNION FREE SCHOOL DISTRICT, LEROY VAN NOSTRAND, BRUCE MacGILL, STEPHANIE ANDREWS, and GEORGE WOLF, Defendant(s)

The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge

MEMORANDUM
AND
ORDER

Defendants Amityville Union Free School District ("the District"),
Stephanie Andrews ("Andrews") and Bruce MacGill ("MacGill"),
(collectively "defendants") bring this motion to dismiss the amended
complaint of plaintiffs Alexandra Gilmore ("Gilmore") and Juliet
Jordan-Thompson ("Jordan-Thompson"), (collectively "plaintiffs"), for
failure to state a claim upon which relief can be granted pursuant to
Fed.R.Civ.P. 12(b)(6).*fn1
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The defendants also move to dismiss the amended complaint against the
individual defendants, Andrews and MacGill, pursuant to
Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction based on a
failure to timely serve in accordance with Rule 4(m) of the
Federal Rules of Civil Procedure. Alternatively, the defendants move to
stay the proceedings based on abstention principles due to the related
administrative proceeding (the "Administrative Proceeding") before the
New York State Commissioner of Education.*fn2

This is the defendants' second motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6). Oral argument on the defendants' first motion to
dismiss the plaintiffs' original complaint was heard on January 31, 2003.
In an Order dated February 9, 2003, this Court dismissed the
plaintiffs'_1983 claims with leave to
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amend, advising the plaintiffs to "adequately allege municipal
liability and to clarify the basis for a finding of intentional or
purposeful discrimination." Gilmore v. Amityville Union Free School
District, No. 02-CV-3751, at 23 (February 27, 2003).*fn3
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For the foregoing reasons, defendants' motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) should be GRANTED as to all federal claims, and
as this Court declines to exercise supplemental jurisdiction pursuant to
28 U.S.C. _1367(c)(3), all remaining State law claims should also be
DISMISSED without prejudice to any similar State proceedings.

BACKGROUND

This is a purported class  action which challenges the
District's election for three seats on its Board of Education. As a Fed.
R. Civ. P. 12(b)(6) motion requires this Court to find all allegations
contained in the plaintiffs' amended complaint to be true, the facts
below are derived from the amended complaint, unless otherwise
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indicated.

A. The Parties

Named plaintiffs Gilmore and Jordan-Thompson are African 
Americans and residents of the District. Gilmore resides in Massapequa,
New York and Jordan-Thompson is a resident of Amityville, New York.

While not a party to the present action, Tori A. Bean ("Bean"), who is
African  American and Sam Williams ("Williams"), who is Caucasian,
are also residents of the District. Jordan-Thompson, Bean and Williams
were all candidates for the Board, as well as voters in the District, in
May 2002.

The plaintiffs purport to represent a class of approximately 1,800
voters of the Amityville School District, whose votes in a May 21, 2002,
school board election were allegedly wrongfully tampered with and counted
for the wrong candidates after the votes were tallied.

Defendant District is a duly organized school district existing under
the laws of the State of New York, located in Amityville, New York.
Defendants MacGill, Van Nostrand, Williams and Wolf are residents of
Suffolk County, New York, and each is an agent or employee of the
District.

B. Factual Background
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1. The Election

The May 21, 2002, school board election was for three seats on the
District's Board of Education ("Board"). Bean ran as a candidate for Seat
#1 against Connie Palazzo ("Palazzo"). Bean was the incumbent.
Jordan-Thompson ran as a candidate for seat #3. Running against her was
Barbara Trant ("Trant")*fn4 and Diane Egglinger ("Egglinger"). Williams
ran for Seat #5 against Charles Walters ("Walters"). Bean,
Jordan-Thompson and Williams ran as a group known as "Strong Voice of
Parents" ("SVP"). Palazzo, Egglinger, Walters and defendant Andrews ran
as the "MMAC pack", a name given to them by a local newspaper. The ballot
was set up by the District. The relevant part of the ballot was set up as
follows:

Seat #1

1A Palazzo
1B Bean
1C [blank]

Seat #3
3A Trant
3B Jordan-Thompson
3C Egglinger
3D [Blank]

Seat #5
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5A Williams
5B Walters
5C [Blank]

The voting machines were provided to the District by "Election Machine
Services" ("EMS"), a private company retained by the District. The
President of EMS is Wolf, who is a former Suffolk County Board of
Elections Commissioner.

The election took place at two locations: the Amityville High School
and the Northeast Elementary School. There were two voting machines ...

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